Undercover defendants often make a defense of “capture” claiming that agents have essentially misled them into one criminal act, whether it be buying drugs from an undercover agent or providing fraudulent government services.
But the entrapment defense rarely succeeds in court.
In terrorism cases – the area where the FBI has used undercover stitches most aggressively – prosecutors have a perfect track record in averting arrests. “I urge you to find one of those cases where the defendant has been acquitted and claims that defense,” said Robert S. Mueller III, a former FBI director, during an appearance earlier this year.
The Times analysis showed that the military and its law enforcement agencies have almost as many undercover agents in the United States as the FBI does, over the public as part of joint federal working groups that bring together military, intelligence and law enforcement specialists.
At the Supreme Court, all more than 150 police officers in the court are trained in undercover tactics, according to a federal police officer who spoke on condition of anonymity as it was an internal security measure. During large protests on issues such as abortion, small teams of undercover officers – usually behind the crowd – cavort to look for possible disturbances.
The agents, who often look youthful, will usually “dress down” and carry backpacks to blend in with the crowd, the officer said.
In a recent protest, an undercover agent – and not a uniformed officer – walked into the midst of a crowd of protesters to review a report on a suspicious bag before determining it was not a threat, the official said. The use of undercover agents is seen as a more effective way of monitoring large crowds.
A spokesman for the Supreme Court declined to discuss the use of undercover agents. Mr German, the FBI’s former undercover agent, said he was concerned to learn that the Supreme Court routinely used undercover officers to impersonate protesters and oversee major protests.
“There is a danger to democracy,” he said, “when the police infiltrate protests when there is no reasonable cause for suspicion of crime.”